|Earthman Funeral Directors provides the following information to assist families with legal questions about wills, trusts, life insurance, probate, and matters related to the administration of a decedents estate. This information has been prepared with the assistance of Gregory Heffelfinger, a practicing attorney in Houston, Texas, as a service to you, and is not intended to take the place of the counseling and recommendations of your family attorney. If you do not have an attorney, as part of the funeral services offered by Earthman Funeral Directors, we have arranged for a free one (1) hour consultation with Mr. Heffelfinger to answer your legal questions.
- If the decedent left any written instructions regarding funeral arrangements make sure these instructions are delivered to the funeral director assisting you.
- If the decedent had a last will and testament locate the original and secure the document.
- If there are life insurance policies written on the life of the decedent locate and secure the policies.
An initial consultation with an attorney is recommended. Factors determining what, if any, legal work needs to be done include whether or not there is a last will and testament; whether or not there are creditors to whom the decedent owed money; the size of the estate; the type and character of the property owned by the decedent (i.e. real or personal, separate or community); the manner in which title to property is held; and the existence or absence of beneficiary, survivorship or pay on death designations.
- The original of the decedents last will and testament;
- Any documents signed by the decedent creating a trust;
- Death certificate, if available;
- Insurance policies underwritten on the life of the decedent;
- The decedents most recent account statements from banks, brokerage accounts, mutual funds, annuities, individual retirement accounts, employee benefits or retirement plans;
- Copies of the deeds to all real estate in which the decedent had an ownership interest;
- Titles to vehicles in which the decedent had an ownership interest;
- A brief inventory of all remaining personal property owned by the decedent; and
- A list of all creditors of the decedent and the amount owed to each creditor.
If you are not able to assemble all of this information bring as much of it as you can to the initial meeting with the attorney. Remember, the more information you provide the attorney at this initial consultation, the more specific the attorney can be in making recommendations as to what legal work, if any, needs to be done.
If you believe the decedent did not have a will, then be prepared to discuss the decedents family history with the attorney at your initial meeting. The attorney will need to know about all marriages of the decedent and whether such marriages ended by death or divorce; the names of all children born to or adopted by the decedent including children born out-of-wedlock; the names of any children who although not born to or legally adopted by the decedent may still have resided with the decedent; and the names of the decedents next of kin. This information will enable the attorney to advise you on who is entitled to the decedents property under Texas Law and the interest of each such person in the decedents estate.
Probate is the act or process of presenting the will of a deceased person to the court for official recognition of the document as a valid expression of the decedents intent for disposition of his/her property.
In general the answer to this question is yes. Before disposition of a decedents property will be recognized by banks, depositories, transfer agents, and title companies the will must have been presented to the court and order signed by the judge admitting the will to probate. Absent a court order the will by itself has virtually no legal significance. There are some exceptions where a will may not need to be probated such as when a person dies owning no property whatsoever; prior to death all property is transferred out of the decedents name into a living trust; or prior to death all property is held in joint tenancy with right of survivorship.
Once the will has been filed with the clerk of the probate court, it is usually possible to schedule a hearing within 2 to 3 weeks. Depending upon the county in which the probate proceeding is initiated and courts docket, it may take as long as a month to schedule a hearing.
An executor is a person or entity (i.e. bank or trust company), designated in a will and appointed by the court to serve as the representative in charge of a decedents estate. While not always, most often it is the executor who presents the decedents will to the court for probate. Once appointed by the court It is the responsibility of the executor to collect all assets owned by the decedent that are part of the probate estate; secure such assets under the control and management of the executor; contact creditors of the decedent and make sure all valid debts, expenses and taxes of the estate are paid; and distribute the remaining property of the estate in accordance with the directives of the will.
Letters Testamentary are the documents issued by the court to the person or entity appointed as the executor. Letters Testamentary acknowledge the authority of the person appointed executor to act on behalf of the estate. When Letters Testamentary are presented to banks, depositories, transfer agents, and title companies these third parties know that the person presenting the Letters Testamentary has been before the court; that the court has appointed this person to be in charge of the decedents estate; and that this person is the appropriate person to whom the decedents property should be released. In order to get Letters Testamentary there must be a will; the will must be admitted to probate; the person named in the will as executor must be appointed by the court; and the person named in the will as executor must qualify as directed by the court.
Horror stories about estates that are tied up in probate, continue on for years and years in the court, and are so dissipated by attorney's fees and courts costs that there is nothing is left to distribute represent an exception and not the rule in Texas. If a decedent has a well drafted will that provides for an independent administration, a typical probate in Texas is a relatively painless process. Usually the will can be admitted to probate and an executor qualified within 2 to 3 weeks of filing the will with the clerk of the court. The actual hearing before the court seldom lasts more than 5 minutes. The independent executor functions free of court supervision and involvement in the administration of the estate. This significantly reduces attorney fees and court costs. Many estates are wrapped up and the assets distributed within 6 months to a year of their initial opening.
Earthman Funeral Directors has arranged with Gregory Heffelfinger, a Texas Licensed Attorney whose practice emphasizes probate and estate planning, to provide our web site visitors with current and helpful information. Mr. Heffelfinger has written a number of papers on several issues dealing with probate and estate planning. Additionally, Earthman Funeral Directors has arranged with Mr. Heffelfinger to provide a free one-hour consultation to help the family members that Earthman serves in dealing with their legal issues following a death.
|Probate Attorney, Gregory G. Heffelfinger
The loss of a family member is a difficult enough situation. Compound that loss with the stress of having to deal with courts, banks, insurance companies, retirement plan administrators, and creditors and the situation may seem overwhelming. Some simple planning can greatly reduce the stress and make an overwhelming situation at least manageable during this difficult time. I often tell my clients that if they never have to see an attorney for any other reason, they should at least see an attorney to have a will prepared. In my opinion, with very few exceptions everyone needs a will.
While planning for death is something none of us like to think about, the consequences of procrastinating and having no will or estate plan may place an even greater emotional and financial burden on your family. Below, you will find some helpful information. The information presented is not intended to take the place of your attorneys counseling and recommendations, but rather is intended to provide you with some nuts and bolts information in a very readable format.
|About Gregory G. Heffelfinger
Gregory G. Heffelfinger is an attorney who has practiced law in Houston, Texas since 1983. He is a member of the of the State Bar of Texas, State Bar of Michigan, and licensed to practice before the United States District Court for the Southern District of Texas. Since 1983 Mr. Heffelfinger has provided legal counseling in wills, probate and estate planning to families utilizing the services of Earthman Funeral Directors.
Mr. Heffelfinger can be reached via email or call him at (713) 722-7163.